Are you burning out? Know the signs to avoid personal and professional rock-bottom Savouring eachmoment Lessons from a Sydney lawyer facing a devastating cancer diagnosis Vicarious trauma at work What the Royal Commission can teach us about coping with trauma Sleep pods and ping pong Road-testing law firms’ wellbeing initiatives – do they really work?
Barkinguptheright tree How dogs are creating a healthier justice system
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26 In focus
36 Productivity andwellness Dominic Rolfe analyses the personal and economic cost of ill-health to law firms 40 Wellbeing programs Kate Allman road tests the best wellbeing initiatives in the business – do they really work?
Anna Verney writes how a Royal Commission approach to vicarious trauma has lessons for all lawyers
Meet musical barrister Peter Godwin, who’s putting true balance into a hectic work life
28 Hot topic
54 Living longer
Lillian Leigh shares her story of adversity and resilience in the face of a cancer diagnosis
Joanna McMillan examines the countries with the oldest populations – and shares their secrets
30 Dogs and justice
50 A day in the life
Are dogs the key to better judicial outcomes and healthier justice system? We find out
The CEO of the Butterfly Foundation tells Jane Southward about her work supporting people with eating disorders
Thea O’Connor tells how you can recognise the signs of burnout and act before it’s too late
ISSUE 41 I FEBRUARY 2018 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 14 News 18 Members on themove
79 Elder law
The latest developments in law reform
Avoiding elder financial abuse – safeguards for solicitors
82 Administrative law
Preparing for mandated electronic conveyancing
Good administrative decision- making not bound by Briginshaw
72 Family law
A turning point for gender dysphoria cases in Australia
2018: a year of signficant changes to privacy law
23 Expert witless 23 The LSJ quiz 24 Out and about 44 Career coach 46 Career 101 47 Library additions 48 Doing business 58 Travel 64 Books 66 Non-billables 106 Avid for scandal
Enterprise bargaining & lessons in grammar from the High Court
Enduring powers of attorney – practical tips for executors
88 Property & elder law
Retirement villages – a reality check
New Year ushers in sweeping reform of state planning laws
A High Court win for protesters
92 Case notes
Accountants and lawyers: friends or adversaries?
HCA, FCA, Criminal, Family & Wills
4 LSJ I ISSUE 41 I FEBRUARY 2018
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ISSUE 41 I FEBRUARY 2018 I LSJ 5
A word from the editor
As of December, I have been lucky enough to be co-fur- parent to the world’s cutest puppy. His name is Ted, he is four months old, and he brings joy and delight to all who meet him. (You can judge his cuteness for yourself on page 3.) Our cover story this month, “Animal instincts” on page 30, delves into the growing trend of introducing therapy dogs into courtrooms and courthouses. It’s not hard to see why this is a
Managing Editor Claire Chaffey Associate Editor Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Senior Writer
good idea. Having owned Ted for just a couple of months, I am astounded by how people react to him. He’s like a golden, fluffy magnet, drawing people in wherever he goes. Strangers become friends in a instant. Distant stares turn to smiles. People cross the street to cuddle him. Walking him is an exercise in laughter, openness, and joyful exchange. It’s simple and poweful. And having witnessed the work of the wonderful therapy dogs at Manly Courthouse, I can see why their presence is having ripple effects within the justice system. May it long continue. If you read just one other story in this month’s LSJ , make it Lillian Leigh’s touching and heartbreaking piece on page 28, “Crushing waves”. Lillian is a mother and lawyer facing a devastating cancer diagnosis. Her approach to living is utterly inspiring, and we can all learn from her experience. We wish Lillian and her family all the best and thank her for sharing her wisdom in this issue. I very much hope you enjoy this special wellness edition of LSJ . Here’s to health and happiness (and maybe a puppy) in 2018.
Lynn Elsey Reporter Kate Allman Art Director Andy Raubinger Graphic Designers Alys Martin, Michael Nguyen Photographer Jason McCormack Publications Coordinator Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries email@example.com Classified Ads www.lawsociety.com.au/advertise Advertising enquiries firstname.lastname@example.org or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2018 The Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of the Law Society of New South Wales. Opinions are not the official opinions of the Law Society unless expressly stated. The Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.
ANNA VERNEY Vicarious trauma p26 Anna Verney was a lawyer at the Royal Commission into the Institutional Responses to Child Sexual Abuse. She writes about how the Commission’s Well at Work program has set new standards for how lawyers deal with vicarious trauma.
DOMINIC ROLFE Cost of wellness p36 When it comes to genuine wellbeing, it pays to move beyond box-ticking and approach wellness as a holistic, ongoing, and very human necessity – not just a work issue. See how the profession
JOSIEWALKER Planning law p76 Josie Walker is a barrister at Frederick Jordan Chambers. She discusses key amendments to NSW planning laws in the areas of public participation, local plan-making, certification and enforcement.
MICHELLE PAINTER Family law p72 Michelle Painter SC is a barrister at Nine Selborne Chambers. With co-author Surya Palaniappan, she analyses the landmark decision of Re: Kelvin,
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which represents a turning point for gender dysphoria cases in Australia.
is handling this important issue.
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to email@example.com. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.
Cover design: Andy Raubinger
NEXT ISSUE: 1 MARCH 2018
6 LSJ I ISSUE 41 I FEBRUARY 2018
THE LAW SOCIETY PROUDLY SUPPORTS THE 2018 PRESIDENT’S CHARITY THE BUTTERFLY FOUNDATION The Butterfly Foundation represents all people affected by eating disorders and negative body image. As the leading national voice for supporting their needs, the foundation highlights the realities of seeking treatment for recovery, and advocates for improved services from both government and independent sources. Find out more at thebutterflyfoundation.org.au
BUTTERFLY NATIONAL HELPLINE 1800 ED HOPE (1800 33 4673)
W elcome to a new year of legal practice in NSW. I am honoured to pick up the mantle as Law Society President, taking over from Pauline Wright. I am looking forward to tackling many worthwhile challenges in the year ahead.Reducing the high rates of mental illness in the legal profession is one of my goals for the year. This means we must all do more to care for ourselves and each other. There are many complex and heartbreaking mental illnesses that touch our lives and those of the people around us. Among critical mental illnesses are eating disorders, which often are a private affliction. Those affected are
sometimes don’t access help because of shame or social stigma. There are helplines, treatment programs, and early intervention workshops available, including in schools. Without organisations such as The Butterfly Foundation, my chosen charity for 2018, many families would be left without support. Working with offenders, colleagues, and Veteran’s Review Board applicants with a mental illness or condition has pervaded my 35-years’ experience in the law. It has equipped me with an understanding of the vital need for more awareness and services for solicitors. The pressure-cooker environment in which we work, often dealing with difficult cases, and our high-performing mindset means we sometimes hide the problem, or self-medicate with alcohol or other substances, rather than finding a lasting solution. Mental illness can be more easily addressed at an earlier stage. The Law Society aims to facilitate this through confidential professional and practice advice and counselling services. We can all work to reduce mental illness by being open, accepting, and honest – and ensuring those in need have support. This year, the Law Society plans to reinvigorate services for solicitors across all sectors. We are acutely aware of the challenges confronting the viability of practice and the stress it can cause. This is why our initiatives will include revitalising the Solicitors Benevolent Association, which can assist solicitors and their immediate families in financial distress. Mental illness is also often a feature among offenders who end up in our overcrowded jails. From the first experience of a vulnerable juvenile with police to adult incarceration, many do not have adequate support and treatment. This can contribute to reoffending. The Law Society’s advocacy for greater resourcing for our courts, Legal Aid and community legal centres, and more support services for offenders, aims to break this cycle. Other initiatives this year will assist members grappling with a rapidly evolving, competitive and tech-driven legal landscape. Importantly, we also have much in store to help women lawyers thrive, in recognition of the landmark 100-year anniversary of the Women’s Legal Status Act 1918 (NSW). I very much look forward to working with you and for you in 2018.
Doug Humphreys OAM
8 LSJ I ISSUE 41 I FEBRUARY 2018
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ISSUE 41 I FEBRUARY 2018 I LSJ 9
Enough with the “Dear Sirs” Does anyone else feel mad (and a little bit sad) when they see the words “Dear Sirs” on an email or letter? I am sure the salutation was perfectly fine at a time (less than 100 years ago in NSW) when women couldn’t be lawyers … but, if you are in 2017 and addressing correspondence to one gender (male) only, please stop. Yes it is short. You might think it sounds “professional”. You may have seen a larger firm adopt the wording. But it is lazy, it is ignorant, it is presumptuous. Use “colleagues” Use my first name. Use the name of my firm. Use an emoji. But please, please, please don’t start o the relationship by assuming that only men work at my firm. Alexia Ereboni Yazdani, Hillside Legal Note from the editor: We get this all the time at LSJ . So many letters coming in are addressed in this way, which we find ba ing – especially given that women are the significant majority on the team. Surprisingly, these emails often come in from young people, most of whom are very embarrassed when I respond and point out that we are an almost all-female team. And we agree – enough!
smile to me. Having conducted 500 civil jury trials and an equal number of non-jury trials in the US, I have experience with this subject. A rule of thumb is that in complex cases, it is essential to have a jury, whereas in shorter/simpler trials, the matter can be heard by the court. While judges have enormous expertise in the law, in terms of interpreting complex facts, the collective experience and understanding of six or 12 diverse citizens cannot be equalled by any single individual. Juries also approach trials with freshness as they have not “heard the same thing before”. They take their roles very seriously. In a recent business torts trial relating to the aircraft manufacturing industry, involving many millions in lost profits, our jury included a CPA and several small business owners. Their understanding of how business works and interpretation of financial data was invaluable in cutting through the sea of expert testimony. Less charitably, there is an old maxim among some American trial practitioners that “12 … are better than one”. The reader can fill in the blank. Harry Melkonian, Melkonian & Co, Sydney
the family courts and the urgent need for simplified
legislation and extra resourcing. However, this only tells part of the story. Of great concern were the Australian Institute of Family Studies statistics indicating that, following separation, thousands of children are missing out on the opportunity to have both parents actively involved in their lives. Ironically, the relentless media coverage of our gridlocked family court system may serve to exacerbate the problem, as parents simply give up on seeking contact with their children, in the belief that their only option is a protracted, costly and psychologically devastating court battle. Given that only 5 to 10 per cent of family law cases end up in court, more attention needs to be focused on alternatives to litigation, such as Family Dispute Resolution (FDR), collaborative practice and child inclusive models, which o er children a voice during the FDR process. These methods provide a more responsive, timely and cost-e ective means of resolving family law disputes, even for vulnerable parties. Perhaps surprisingly, across the country, many first-tier family law firms are running a significant number of property and parenting matters in the collaborative practice model. This innovative and non-adversarial approach to family law has benefits that flow on not just to clients, but to lawyers’ own professional practice, in the form of strong collegial networks formed with other lawyers, financial neutrals and mental health specialists working in the sector. Meanwhile, our Family Relationship Centres continue to fly under the radar, while providing critical support for separating families through family counselling and FDR. Despite poor resourcing and waitlists, FRCs provide a host of innovative post-separation programs,
ISSUE40 DECEMBER 2017
THEHIGHCOSTOF AFAILINGSYSTEM WHYAUSTRALIANFAMILYLAW IS INTATTERS ANDWHATMUSTBEDONETOFIX IT
MORETHANSTATISTICS ONELEGALSERVICE’SCOMMITMENTTO MAINTAININGHUMANITY INREFUGEECASES
DRIVINGINNOVATIONINLAW MEETUBER’SASIAPACHEADOFLEGAL ISYOURCLIENTLEGALLYINSANE? AGUIDETOTESTINGTHEEXPERTS ACONSTITUTIONALCATASTROPHE THESECTION44DEBACLEEXPLAINED ANEWERAINCOMPETITIONLAW OUTCOMESOFTHEHARPERREVIEW
23/11/17 3:04 pm
WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will win lunch for four at the Law Society dining room.
Please note: we may not be able to publish all letters received and we edit letters. We reserve the right to shorten the letters we do publish.
Family law alternatives Jane Southward’s excellent
CONGRATULATIONS! Alexia Ereboni Yazdani has won lunch for four. Please email email@example.com for instructions on how to claim your prize.
Are 12 better than one? The article about whether juries are up to the job (November LSJ ) brought a
overview of the troubled state of family law (December LSJ ) highlights the increasing complexity of matters reaching
10 LSJ I ISSUE 41 I FEBRUARY 2018
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including adolescent/family mediation, parenting education and dedicated services for CALD and other vulnerable populations. One hopes the Australian Law Reform Commission’s review of the family law system will give appropriate recognition to ADR and the crucial role played by our chronically underfunded community sector, including FRCs, Legal Aid and community legal centres, in reducing pressure on the courts and providing all Australians with access to cost-e ective and non-adversarial methods of resolving family law disputes. Julia Brierley Sydney Dispute Resolution Family law in crisis LSJ ’s December article on the state of the family law system highlighted key issues of a system in crisis. It was disappointing to note that none of the contributors to the article pro ered a solution that went beyond tinkering with elements of the existing system. Reference was made to the benefits that mediation services had brought to an overloaded court system. However, there was no mention of the Federal Government’s plans to pilot Parenting Management Hearings – a tribunal-style system that has the potential to reduce the number of cases entering the court system and to achieve a quicker, cheaper resolution of family law disputes where mediation has failed. The introduction of such multi-disciplinary inquisitorial panels as an alternative to traditional court processes would allow a non-adversarial approach to the resolution of family law disputes, an approach which may well be better suited to their resolution. The legislative amendments needed to implement the scheme were introduced into Federal Parliament on 6 December. Another important issue not mentioned in the article was the ine ectual interface between the family court
system and the state child protection agencies. The poor integration of these two systems is failing to adequately protect the interests of at-risk children in family law disputes. The Attorney-General introduced a bill into Federal Parliament on 6 December which is aimed at reducing the need for families experiencing violence and/ or child abuse to navigate multiple court systems. These two Commonwealth initiatives are significant. It would be of benefit to readers to run a follow-up article examining the proposed changes. Name withheld A new tribunal, perhaps? Perhaps the delays in the family courts could be alleviated if all parenting matters are heard by a tribunal (similar to NCAT’s Guardianship Division). The tribunal could comprise three members – one a lawyer; another a social community member who has had experience with children (e.g. primary school teachers, parents, and grandparents). The tribunal would exclude lawyers (sorry) with some exceptions (e.g. parents who have a reading/writing disability or physical disability). Before filing an application or response a parent would need to: (1) attend a parenting worker/psychologist who has experience in treating children; and the third a after separation course; (2) view a relevant movie/ documentary on the adverse e ects of conflict on children; and (3) complete a detailed questionnaire which would be devised to rate a parent’s current level of focusing on the bests interests of the child and the parent’s possible ability to change behaviours to focus on the bests interests of the child. At the first directions hearing, a parent will: (1) need to answer questions from tribunal members on his/her understanding of the principles taught at the parenting after separation course; and (2) be
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ISSUE 41 I FEBRUARY 2018 I LSJ 11
What is going on at the Law Society? I normally don’t take much notice of Society publications but today I couldn’t drag my eyes away from the contention in Monday Briefs that “the same-sex marriage survey re- affirms the rule of law”. “What? Who is writing this drivel?” I thought. Who indeed? The President of the Society! Then I read November’s Mailbag and someone has been given a full page to push the contention that it was not okay to vote no. Let’s get some things straight. The survey question does not touch upon the rule of law. The rule would support the Marriage Act whether amended by our elected representatives, or not. Any person who does not understand that shouldn’t call themselves a lawyer because they do not understand what law is about. We also live in a free society. That means people can think, believe, and vote for, whatever they want. And, to the ever-increasing number of politically correct lawyers who do not believe that, when you next read Orwell’s 1984 , if you ever do, please do not imagine yourself as the subjugated Winston Smith. You are actually Using the wrong C-word A headline on the front page of your latest edition (December LSJ ) calls the recent brouhaha over s44 of the Constitution a catastrophe. Would you mind explaining to whoever wrote it the difference between a catastrophe and a cock-up? Richard Travers Note from the editor: Perhaps, but just imagine the letters if we’d put that on the cover … Obscene costs I was surprised when I read in The Australian the comments of Justice Benjamin of the Family Court concerning the allegedly excessive costs of two lawyers, who had appeared in his court. On the bright the other bloke. Peter Swinton
given his/her score on the questionnaire. If a parent fails to show an understanding of the principles taught at the parenting after separation course and/or has a score that indicates a level of failure to focus on the bests interests of the child, the proceedings will be adjourned to allow the parent to participate in a further educational course. All parents will be subject to a random drug test and a random psychological test on site at the premises of the tribunal to be determined by the tribunal at any time. All adults living with a parent will be required to be interviewed by a case worker at some stage before final determination. Meanwhile, the children involved in parenting disputes will be learning how to become supreme diplomats (or manipulate their parents) as their parents continue to fight and eventually the children will vote with their feet. Kathy Chase, Lawyer Time for a Bill of Rights News has just broken of Royal Assent to the Marriage Amendment ( Definition and Religious Freedoms) Act (Cth) 2017. Once again, the Australian people have shown that they will throw ignorance and superstition into the dustbin of history. It’s time now to take the birth of this new freedom to its logical conclusion and pass a Bill of Rights. Even conservatives now acknowledge the need to protect our inherent liberties, received from England and tempered by our unique experiences on this continent. After the sobering experience of being in the minority, even conservatives no longer see a Bill of Rights as liberal manifesto, but as protection against the tyranny of the majority. Let’s finish what we’ve begun, summon the better angels of our nature and continue to build a new, more
side, those comments at least confirm the bulk of lawyers practising in family law are operating within existing rules and client expectations on fees. On one view, if fees are charged within the terms of a properly written and executed costs agreement and there is no other impacting relevancy such as overcharging, a disability in the client, acting without instructions or blatant over-servicing (and this would be difficult to prove if the work done is carried out under instructions), what business is it of a judge to interfere in a solicitor/client relationship or otherwise take the high moral ground? Moreover, to the extent a major disparity exists between each litigant’s costs there are adjustment powers in property cases available to the Bench in those rare circumstances where it might be appropriate to intervene. That said, isn’t the greatest need for reform to reduce costs, within the court itself and its younger brother, the Federal Circuit Court? For example, the wasted costs of waiting time at court is gargantuan. To those who respond saying discussions at court are beneficial, in my long years of practice, I found discussions exercise than a useful tool in negotiations. Clients invariably found it difficult to make firm decisions when they were part of the cauldron of court. Conferencing, admittedly, less so. Most lawyers just wanted to get into court, deal with their matter and go. No such fortune. As well, the procedural steps required to be followed in court in prosecuting a claim actively work to increase costs. Allow me to relate a recent instance of this. I have retired. A former client rang me to complain about his firm of specialist family lawyers insisting counsel attend the first day of a LAT hearing. He was advised this was the firm’s policy, a policy not with opponents at court more a time-occupying
earlier advised to him. I told him to ring the firm back and insist the solicitor conduct the matter to the intent his bill be up to $2,000 rather than $7-8000 for what, in reality, is about half an hour in court. The firm would not budge. That alone, puzzled me because years ago if a client did not have the wherewithal to pay counsel, the solicitor was duty bound to run the brief alone. I rang a colleague at the Sydney Bar and he confirmed most LATs were conducted by counsel and that there was a general expectation by the court that the Bar would capture this work. Why is this so? How has this successfully infiltrated practice? If a solicitor is not competent to conduct most LATs what is that solicitor, as the holder of a practising certificate entitling appearances in the High Court, really worth to the client and the court? I would have thought, not much. An LAT, after all, is just an up market version of the old down market directions hearing, isn’t it? His Honour also attracted the lawyers (which I took to include the clients) arguing and fighting every point in the litigation. One of the greatest incentives to argue in the Family Court comes from Section 117 of the Act. There are nowhere near enough specifically calculated costs orders made and it is almost impossible to secure one on a solicitor-client basis. To defeat an unmeritorious application and stunningly secure costs (rare enough) representing a small fraction only of the bill receivable by the punter, is a major contributor to grief and anxiety. Section 117 needs corrective surgery in its letter and/or working implementation. The new Chief Justice has an ideal opportunity to lead a charge to put his house in order. Ken Barnes, Beecroft. media attention with his adverse commentary on
inclusive legal world. Justin Cahill, Solicitor
12 LSJ I ISSUE 41 I FEBRUARY 2018
“Thanks to Ada Evans, who had to work so hard in her life to obtain these rights, that she never actually got to practice [sic] law for one day in her life. Any di erence in status in the past or in the future only creates one outcome: lack of progress in the community as a whole in the way that the legal system operates.” Sarah Haddad, Facebook
“Sooo glad you’re all back into the swing of it!” Pauline Wright, Facebook
“Who finishes at 5pm?!?!” Mark Haydon, Facebook
“Oh no, you found us.” Roxy Lamborghini, Facebook
“Woohoo. I wish I received that cane/umbrella though.” Maddison Jones, Facebook
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ISSUE 41 I FEBRUARY 2018 I LSJ 13
An opportunity to give back
BY JANE SOUTHWARD
years as Principal Registrar Administrative Appeals Tribunal. In 2010, he became Principal Member of the Veterans’ Review Board. “My career has been essentially in government service and that is unusual,” Humphreys said, adding that he is proud to be an active member of the Army Reserve. “Even now, I am a duty solicitor at heart. You are seeing people and assisting them when they are at their most vulnerable and when there is a capacity to make a big difference to their life.” Humphreys has served on the Law Society Council since 2009 and said one of his key aims as President was to boost legal aid funding and improve the legal aid rates of pay for private solicitors. “I want to see what we can do to boost the fact that the profession contributes so much to the community through heavily discounted legal aid work,” Humphreys said. “If they weren’t prepared to do that, the justice system would fall over.” Other concerns include court delays and resourcing and pushing for the appointment of more solicitors to the bench. “If you ask me what is a vote winner, my answer is there is a general requirement for people to have faith that we have a fair and just system,” he said. “When you start talking about three- and four-year delays in the Family Court, the system is no longer fair. “It costs about $120,000 per year to keep somebody locked up on remand. Every time we lock somebody up for a year longer than they might otherwise have been, we are denying ourselves the cost for a nurse, paramedic, firefighter or school teacher. Another key initiative is to review the Society’s wellness programs and improve services for members. “We are a voluntary professional organisation and we need to be the place where there is no wrong door for our members,” he said. “We are not a provider of wellness services, but we can send solicitors off to professional services with people who get what it means to be a lawyer, the pressures of being a lawyer, President’s charity, the Butterfly Foundation – an advocacy group for people with eating disorders. “Eating disorders are a form of mental illness. It is not well known, but anorexia nervosa has the highest mortality rate of any mental illness.” and tailor the services to their needs.” The first step is Humphreys’ choice of
After a long career in government service including a decade running the criminal law practice at Legal Aid, new Law Society President Doug Humphreys has his eye on some key changes. Humphreys is the first to admit his working class family in Bathurst NSW was surprised that he aimed to study law. It was 1976 and UNSW was proudly sending its first group of law graduates into the workforce when Humphreys, a country kid with four siblings, enrolled to study commerce/law and signed up for the Army Reserve to make ends meet. “I chose law because it was a pathway I was interested in and would give me opportunities to get ahead,” he said. “I added commerce in case I didn’t like law and wanted to work as an accountant.” Service to the community has been a tradition in his family. Humphreys, 60, grew up in the Bathurst fire station because his father, Kevin, manager of a tyre and rubber company, was the resident volunteer. His grandfather, Joseph, served at Gallipoli and the Western Front and met his wife when he was recovering from injuries before he was discharged. After university, Humphreys joined Peter and Crompton, a small Sydney law firm with three partners, and did general litigation and legal aid crime cases in the District and Supreme Courts. Three years later, in 1984, he took a position doing duty court work at the then Public Solicitors. He went on to be Director of Criminal Law Branch at NSW Legal Aid for a decade. He also spent three years in the Mental Health Advocacy Service, doing forensic and civil committal work and seven
We are a highly pressured and a high performing group and, in a profession such as ours, the prevalence of eating disorders is high. It’s important to shine a light on them.
14 LSJ I ISSUE 41 I FEBRUARY 2018
NEWTHISMONTH Just Art and Just Music back in 2018 By popular demand, the Law Society’s charity arts initiatives Just Art and Just Music will take place again in 2018. e Law Society soon will be calling for eligible artists and musicians to submit artworks and songs on the theme of “justice”. Finalists will be showcased at an exhibition and concert later this year, with proceeds going to the 2018 President’s charity, the Butter y Foundation. “Many members of the legal profession are involved in music and art so it’s an honour for the Law Society to showcase their many talents,” said Law Society President Doug Humphreys. So get those creative juices owing and watch this space: entries open on 1 March. lawsociety.com.au/president The NSWDepartment of Justice is calling for submissions to a review of the royal prerogative of mercy and whether petitions for mercy and their outcomes should be publicly available. is broad discretionary power harks back to ancient privileges of the British monarchs, and was adopted into Australian law via the grant of power to the executive in section 61 of the Constitution. In essence, it allows the Attorney-General to grant pardons and reduce or quash criminal penalties in individual circumstances. To date, Australian courts have found that the Crown’s discretion to exercise the royal prerogative is not amenable to judicial review. Submissions close on 9 February. Have your say at nsw.gov.au/ improving-nsw/have-your-say/ mercy-review NEWTHISMONTH Review of the royal prerogative of mercy
FEDERAL ATTORNEY GENERAL
I have come to a view that I can make a contribution to the advancement of a number of very important issues … and that my greatest chance of making any kind of impact in respect to those issues is in a federal setting. 2012
ISSUE 41 I FEBRUARY 2018 I LSJ 15
MATT WHITAKER JONES DAY sixminuteswith
Matt Whitaker is an associate at Jones Day in Sydney, working in anti-trust and competition law and, occasionally, general litigation. The 25-year-old broke the world record for running a marathon in a suit by 18 minutes at the 2017 Sydney Running Festival. Whitaker has a B.S. in Advanced Mathematics and LL.B. from the University of Sydney. BY LYNN ELSEY
With a degree in advanced mathematics, how did you end up as a lawyer? When I was studying at Sydney University, I also studied law. It started as a nice diversion from math but after my second or third year, law started to click more. It eventually became easier to visualise than math. Is your math degree helpful at work? It’s useful when I have problems with Excel spreadsheets as I can usually understand how the spreadsheet works and the formulas involved. How long have you been running? I started running when I was 15, Sydney was my seventh marathon. Last year I saw a guy, dressed as a jester, break the jester marathon record. It gave me the idea to try something. I did a bit of Googling and decided that attempting to break the marathon in a suit record seemed to be the best option. Did you wear a special suit? No, just a standard three-piece wool suit. Although people think that wool sounds really hot, as a material it is really quite sensible as it breathes and absorbs sweat – two things that are essential for marathon running. The Guinness World Record book says you have to keep the top button done up for the entire race, plus wear a vest and tie. Luckily, you can wear trainers. The trousers were a size larger than I normally wear, which also helped. Why did you decide to run a marathon in a suit?
How did you train? I ran a marathon in Canberra and did City2Surf in August. In the six weeks leading up to the Sydney event, I did a few 10-14km runs in the suit to help me prepare for the challenges of running in it. Howwas the be-suited marathon? I definitely wasn’t prepared for how dehydrated I got and how drenched [in sweat] the suit got. But the adrenalin of the event was a big help. My time was 2 hours, 44 minutes and 29 seconds, a lot slower than my previous marathons but I still managed to finish 27th. Inspirations along the way? During the run, more than a handful of people yelled out, “Oh, I see you’re running late for work.” It was funny the first few times, obviously each person thought it was the first time I had heard it. I think it surprised a lot of people. Around the 28km mark my year 12 maths teacher, Robin Nagy, happened to be in the crowd taking photos. He then ran down to the 36km point in the course, which was a massive boost in the second half of the race. What happened to the suit? I’ve worn the pants a couple of times; the tie is completely trashed. I keep it in the office. Any plans to better your record? No. It was a fun thing to do, but that last hour was the least fun I’ve ever had running.
Photography: Robin Nagy
16 LSJ I ISSUE 41 I FEBRUARY 2018
BY LINDEN BARNES, ETHICS SOLICITOR
Q: My regional Law Society is holding a CPD event. Should I go along?
Please don’t leave it until 31 March, particularly since this year that falls on Easter Saturday. We at the Ethics Department will do our best to do as many presentations as possible in February and March to help you. Back to regional events. I nd that they are well-tailored to local practices. After all, the people organising the events are local practitioners. ey know what is relevant to the region and chose topics that re ect what local practitioners are experiencing. Perhaps the most useful feature at a regional event is the chance to meet colleagues in a friendly environment. is is where we come to the speci cs
of the Conduct Rules. Obviously any chat must be within the bounds of our obligation of con dentiality to our clients (rule 9). In a smaller region particularly, discussing issues without identifying clients is much more di cult where everyone knows everyone. And it goes without saying (but here I am saying it) that any chat must be courteous both to the listener and anyone else involved (rule 4). However, the value of the chance to get to know your colleagues in a social environment, not at the other end of a burgeoning chain of emails in a dispute between clients, is invaluable.
A: Absolutely. Remember 31 March is drawing near and if you have not completed your CPD, you need to get organised fast. Everyone needs to do their 10 units, including the four compulsories of ethics, practice management, professional skills and substantive law (see lawsociety.com. au/ForSolictors/practisinglawinnsw/ mclecpd). Accredited specialists must do their additional hours as well (see lawsociety.com.au/ForSolicitors/ Education/specialists/Specialistpolicies).
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ISSUE 41 I FEBRUARY 2018 I LSJ 17
Abby van der Velde Joined as Solicitor Matouk Joyner Lawyers
KathyMerrick Appointed as Partner, Disputes Gadens, Sydney
SallyMoten Appointed as Special Counsel, Workplace Relations & Safety Lander & Rogers
Sophie Bonnette Appointed as Lawyer, Workplace Relations & Safety Lander & Rogers
AdamBattagello Appointed as Lawyer, Workplace Relations & Safety Lander & Rogers
Dermott Lynch Appointed as a Partner, Disputes Gadens, Sydney
Tamara Scholl Joined as Lawyer Gavin Parsons and Associates Pty Ltd
Michael Bowyer Now Principal, Bowyer Advisory and Consultant Unsworth Legal
KieranMcArdle Promoted to Associate McArdle Legal
Michael Bampton Appointed as Partner, Property, Construction & Planning Gadens, Sydney
JessicaMorath Promoted to Partner, Pro Bono Clayton Utz. Sydney
Elizabeth Richmond Promoted to Partner, Competition Clayton Utz. Sydney
Heidi Menkes Joined as a Senior Associate Pearson Emerson Meyer Family Lawyers
RoccoMusumeci Promoted to Senior Associate Accorn Lawyers, Wollongong
Jennifer Chambers Promoted to Partner, Global Disputes Jones Day, Sydney
Prudence Smith Promoted to Partner, Antitrust & Competition Jones Day, Sydney
KimHealy Joined as Family Law Team Leader Aubrey Brown
Nicholas Coffill Joined as Lawyer, Commercial Law Team Aubrey Brown
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18 LSJ I ISSUE 41 I FEBRUARY 2018
STUDENTS IN LAW Mock trial triumph
Radford College Mock Trial teamwon the 36th Annual Mock Trial competition, the first ACT school to take the title in 20 years. After nine competitive rounds involving 162 schools and 90 volunteer solicitors across NSW, the nal trial between Radford College as the defence, pictured above, and St John Paul as the prosecution, took place on the last day in November at the University of Sydney Law School Moot Courtroom. e criminal matter detailed charges for drink driving, and tested the students’ abilities to prove each element of their case while adhering to the formal procedures of a courtroom. Runners-up St John Paul College proved their worth throughout the year and were commendable competitors on the day. Jacinta Quee, from Radford College, impressed the judges in her role as barrister for the defence and was awarded the Sydney University Best Advocacy Prize. e grand nal judges, Geo rey Shelton, Ellen McKenzie and Magistrate Elizabeth Ellis, all long-serving volunteers in the Law Society’s mock law program, applauded the two teams for reaching the grand nal. “I continue to be involved in this program because the bene ts to me massively outweigh the commitment of time and attendance at di erent schools,” said Children’s Court Magistrate Ellis. “ e students are always enthusiastic, wanting to learn about the legal principles and the conduct of a mock trial. Each time, I receive a boost in my own commitment to working with young people.” e rst round of the 2018 Mock Trial competition begins on 26 February. Mock Law coordinator Anwen Gardner is seeking volunteers to act as magistrates, script writers and team coaches. Email Mocklaw@lawsociety. com.au to get involved.
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ISSUE 41 I FEBRUARY 2018 I LSJ 19
Disrupt or be disrupted
BY KATE ALLMAN
From left: Chris Savundra, Martina Ludvigova, Chris D’Aeth, Marina Chiovetti, Paul McLachlan, Ann-Marie Boumerhe.
the Supreme Court of NSW, Paul McLachlan, a Sydney partner at McCullough Robertson, and Martina Ludvigova, Strategic Membership Officer at the Law Society of NSW. Chiovetti explained that while work had once flowed in a “waterfall-like” descending pattern from managers to lower-grade employees, the digital revolution had enabled work to flow quickly both ways and for new ideas to pop up at any stage in the process. Open-plan workspaces, she said, could maximise the potential of this fluid, creative workflow by enabling lawyers to exchange ideas with colleagues sitting right next to them. However, she noted that trust was essential for teams moving to open-plan workspaces. “Agile and flexible workspaces recognise that people can manage work on their own,” said Chiovetti. “The working day is no longer nine to five, and managers need to trust teams to do work when and how it suits them.” Paul McLachlan from Sydney firm McCullough Robertson said lawyers at his firm found it easier than they first thought to transition to open-plan offices and “paper-less practice”. “Desk size has shrunk, but screen size has expanded,” said McLachlan.
“Most lawyers I talk to are thrilled that they no longer need to sift through mountains of paper to find the part of a file they need – they can simply press Crtl + F to find what they were looking for.” Chris D’Aeth, Executive Director and Principal Registrar at the Supreme Court of NSW, said he believed even the most traditional legal establishments – the courts – could adapt and benefit from agile technologies. He pointed to a trial of paperless hearings, launched last year in the NSW Land and Environment Court, to show that this was the case. He also pre-emptively answered the question on every lawyer in the audience’s lips. “Is the court ever going to go paperless?” he asked. “Well, at this stage, maybe less paper. Not quite paperless.” New Ways of Working in the Agile Legal Environment was the first of a series of events the Law Society is organising to help lawyers prepare for the future of work, following recommendations from the 2016 Report on the Future of Law and Innovation in the Profession (FLIP). See the Law Society website and social media channels for information on upcoming events in 2018.
“Why is change hard?” This was the question Marina Chiovetti, the Portfolio Director of Digital Strategy and Capability in NSW Government’s Chief Digital Office, posed to an audience of about 120 lawyers at the Law Society of NSW on 29 November. “Change is hard because we don’t choose it; it simply happens to us,” said Chiovetti, who has spent more than 15 years travelling the world touting the benefits of agile work processes to executives in professional services. “Woolworths didn’t ask for Amazon to open up in Australia, but guess what – it happened. Work is changing because the world is changing.” Chiovetti joined a panel of five “change instigators” in the legal profession who encouraged NSW lawyers to get over their fear of change and embrace the productivity and cost efficiencies that agile work technologies could offer. The panel included Chris Savundra, the Chief Legal Officer at Australian Securities and Investments Commission (ASIC), Sam Nickless, a partner and Chief Operating Officer at Gilbert + Tobin, Chris D’Aeth, Executive Director and Principal Registrar at
20 LSJ I ISSUE 41 I FEBRUARY 2018
CONGRATULATIONS UTS Law’s first Rhodes scholar heads toOxford
BY TESS GIBNEY
outstanding Australian students selected to undertake postgraduate studies at Oxford University in the UK. e Sydney-based law graduate will use her scholarship to study a Bachelor of Civil Laws (BCL). Imbued with a strong sense of service, Barnes developed an interest in law after watching the San Jose copper mine collapse on national television and learning about the mine’s long history of safety violations. Today her legal interests lie in the intersection between corporate law and human rights law. Propelled by a desire to advance Australia’s e orts in the ght against modern slavery, she hopes to use her time at Oxford to deepen her
understanding of the ways they overlap. “Ashleigh will be an excellent ambassador for UTS and UTS Law,” says Professor Lesley Hitchens, Dean of UTS Law. Barnes is conducting research into Indigenous deaths in custody for the UTS Jumbunna Institute for Indigenous Education and Research and is spending January to March working as an intern at the Extraordinary Chambers in the Courts of Cambodia, the hybrid tribunal hearing the Khmer Rouge Trials. After her studies at Oxford she has ambitions to lead an Australian “ ink- and-do tank” for human rights and business.
Photography: Kevin Chung/UTS
Recent UTS Law graduate Ashleigh Barnes has won a Rhodes Scholarship, making her the university’s first Rhodes Scholar. A UTS Bachelor of Laws/Bachelor of International Studies (French) graduate, Barnes is one of nine
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